Accused cross-examining alleged fraud victims as she represents herself
How does someone accused of misappropriating millions of dollars from investors act as their own lawyer and client in defence of the allegations?
With a whole lot of guidance and patience from the judge.
Alena Marie Pastuch, a 53-yearold former Regina businesswoman, is representing herself at her trial on charges of fraud, theft and money laundering. They stem from allegations that between 2006 and 2013, people invested with Pastuch or in her companies focused on the development and sale of anti-fraud and child protection technology products.
Several times during the proceedings, Court of Queen’s Bench Justice Richard Elson cautioned Pastuch about keeping her two roles separate — as counsel who poses questions, and as accused who can’t give evidence unless it’s under oath in the witness box.
“You can’t prove anything from behind the podium,” he advised her Wednesday.
After her arrest in 2014, Pastuch had hired her own private lawyer, then applied for and was granted Legal Aid. When that lawyer withdrew, she was granted court-appointed counsel, also paid for by government. After that lawyer withdrew last year, she got a second court appointment. But the lawyer, as with the previous one, cited a breakdown in the solicitorclient relationship and quit as the trial was about to begin in September. When Elson declined to grant a third court appointment, it left Pastuch to represent herself when the trial began last month.
Seated beside her at the counsel table some days is Brian Pederson, formerly the chief technology officer in her companies. He also represented Pastuch in her defence six years ago at separate but related securities proceedings, but has been relegated this time to helping plan strategy and questions.
Last year, the Supreme Court of Canada endorsed a statement of principles that states, in part, “Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation.”
Pastuch’s cross-examination is often interspersed with as many queries for the judge as the witness.
“Am I able to ask his, I wouldn’t say his opinion, but his — I don’t know how I would phrase it,” Pastuch said, addressing Elson in the midst of cross-examining a Crown witness. “Ughhh,” she sighed. “I’m trying. I don’t know how I would phrase it. I’m trying to state like he has this email ... if there was a communication that tied into these answers.”
“And he’s aware of it?” asked Elson.
“Well, there are some (communications) that would help put this in context,” she responded, sighing.
Elson, also sighing, told her she can ask if the witness is aware of the communications, which she promptly did. And the reply? “I thought I had already answered that,” said Garnet Peterson. “I have no knowledge of your outside communications, other than what was between you and I.”
Throughout the cross-examination, Elson has provided minitutorials on the law, relevance, evidence, and avoiding speculative questions.
“Again, I can’t tell you what to cross-examine on, but it’s appropriate that you make your crossexamination sensible and at least coherent for this witness to address the points that you want to raise,” he advised.
As the prosecution now works its way through dozens of witnesses who are expected to testify about their investments and losses, they’re in the unusual position of being grilled directly by the person accused of defrauding them.
Crown prosecutor Dana Brule had earlier asked Peterson, who recouped only $37,000 of his $200,000 investment, about a series of email exchanges with Pastuch, some of which Peterson had described as “threatening.”
Pastuch began her cross-examination by telling Peterson, “It wasn’t my intention to come off as being insensitive.”
The trial is scheduled for three months.